MCSM Responds To 28th Amendment Article

The following is submitted in reply to the article identified below.


Gentlemen;

I have two observations regarding the June 2002, Guns & Ammo article, "Time for a 28th Amendment" by Chuck Kline.

First, it is a good thing you dis-owned any association with the article ("The opinions expressed here are not necessarily those...).

Second, you are right it has, and will, provoke much thought; and letters too no doubt.

This subject has been the topic of much thought for decades. The gun banners try to interpret the Second Amendment in a way to erode the individual citizens right to arms. We have all heard the various arguments; it's a collective right, a flexible "living" Constitution, reasonable restrictions, etc. Often we are tempted to speculate what might be done to end that argument, what changes we might make. We, the patriotic gun owners want to end the bickering in our favor. The anti's wish us to be dis-armed. But, by taking any steps to change the Constitution and end the argument, we may burry ourselves under the Unintended Consequences of what was intended as a reasonable effort. Lets look at a few of the proposals of Mr. Kline.

First, let's look at the Emerson case. Like most legal cases it is a bit difficult to follow and to properly interpret. On the broad view, the several opinions do support the individual right to keep and bear arms, just like Mr. Kline says. But the ruling is a very narrow case, as all are, and we must not read too much into it as affirming a law (or a civil right). Even though the opinions are a good statement, they acknowledge and clearly state support for individual rights to keep and bear arms, that is not what the case was about. It was about the legal issue of dis-arming Mr. Emerson under very narrow and specific law. In that, despite the very strong language supporting the Second Amendment enumeration of the individual right, it did allow for Mr. Emerson to be disarmed during a legal process. This must be what Mr. Kline means by, "reserving the government's power to restrict certain aspects...". Up to that point everything is fine.

However, the continued statement, "...such as regulating the bearing of concealed arms and other possible infringements." is where the trouble starts. The case had nothing to do with CCW, although the vague "other possible infringements" could include that. But it does not.

The argument over semantics leads to the more serious Second Amendment problems. Consider that the Constitution and then the Amendments were written over 200 years ago, then you can understand why the "semantics" poses a problem. Fortunately, there is a lot of written material from that era which discloses what the writers were thinking and what they wanted to do. That, coupled with the clear text of the Second Amendment, answers some of the semantic issues and allows a determination of what it meant then, why the Second Amendment said what it does and what that implies for today.

The effect of personalities ascribed to some groups of individuals, such as, "some on the far left" and "extreme right" and "Militia extremists". Personality must not be used to taint their respective analysis of the topics, and the resulting opinions they might offer, if, and that's a big if, an individual or group can analyze the subject fairly. They must state their resulting opinion, based on fact and proper logic, and support that analysis with reference to other information and opinion. We should then focus on the results and we should ignore the personalities of those presenting a VALID analysis. Of course some individuals and groups may try to sneak a fast one by you and fudge their analysis, but that is what we need to be watchful of.

A few "what if" examples are offered by Mr. Kline. They attempt to equate past and present actions, which we should study. First he says that some positions are, "arms means anything in use by the military..." and then he says, "the opposite camp firmly believes it only refers to weapons in use at the time of the Constitution's ratification - c. 1790". The error of analysis here is the attempt to equate "things" which may change over time. There is another example immediately following where he says, "people certainly can not refer, for pragmatic reasons, to everyone...then we'd have to allow prison inmates to carry concealed and permit grade schoolers to swagger across the playground packing a .25 baby Browning." Two effects are evident here. One is the attempt to equate variable items and the second is to refute by drawing ridiculous (full of ridicule) arguments.

In the first, the attempt to equate things, while time passes and technology changes, fails. While things may change over time, fundamental ideals (like a Bill of Rights) must not change. Equating such concepts and their desired results, serves a more successful purpose, it is immune to the passage of time and the mechanical evolution of things. Please consider what the writers of the time were discussing and putting down as the law of the land. Their overriding goal was to achieve, and to secure for the future, a great measure of individual liberty and freedom. Those few words do not do justice to the idea, but I hope you understand the basic concept. They wrote, that in order for the citizens to first secure freedom and then to ensure freedom through the ages, they must possess the ability to achieve that end and then retain that prize. They knew, and made clear, that the way to do this was to guarantee that as individuals they must be able to resist tyranny, to resist any attempt to remove freedom that would destroy liberty.

Champions of historical liberty even wrote in earlier historical documents, PRECISELY what was expected of individuals so that they may stand ready to defend liberty. They wrote that individual members of a settlement were required to provide their own arms. They even accentuated the more effective means of defense, specifying firearms and shot in preference over edged weapons and spears. So, in analysis of the concept of the duty to resist tyranny, what arms might be the most effective in securing liberty for the individuals today? You guessed it, the common military arms of the current period, just as in the past it was the common military arms of that time. What ever period you choose to study; past, present or FUTURE, individuals must be armed to provide a defense against any force which may attempt to destroy liberty, for example to turn a standing army against the citizens.

Now to the next arguments, exactly who are "the people"? Schoolers are mentioned as not being those who should be armed. But they WERE armed in 1775. Inmates are mentioned as not being those who should be armed. But some, except for being imprisoned, might be those who would be fighting at your back if it comes to defending liberty. At some time in the future there may be many who are imprisoned for fighting for liberty. As I recall, some in another country sought to liberate the prisoners in the Bastille. In the final analysis, "the people" are those who are fit to defend the country and the Constitution. Some, by their past actions are not fit, most are.

Finally, the statement about "schoolers (who) swagger across the playground packing a .25 baby Browning", is a hyperbolic ridicule of those who support defining "the people" in wide terms. This is an old trick, if you can't defeat the argument, attack the individuals holding the position. I dismiss it.

Now to the meat of the article. No, it is not presumptuous for anyone to discuss a concept. Where would we be without free discussion of ideas. After all, that is the basis for another one of those pesky Amendments, part of the Bill of Rights which is protected by the Second Amendment. OK, so that is hyperbole too. Back to the discussion. Lets look at the suggestions, Section-by-Section.

Section 1; Here are presented about 50 words use to define "the people". What could be more simple than "the people"? If you must, define it as those who, in a pinch, will be willing and able to fight. "The people" are most of us. What of the restrictions Section 1 places on "the people", defining those not allowed to keep and bear arms? Who are those who are; "not under indictment", or have been "convicted of a felony crime of violence" or are users of "ANY drug of abuse", or have been "adjudicated as a chronic alcoholic" or "is not under the influence of alcohol" or etc, etc, etc. You get the idea. ALL of these restrictions gradually and incrementally restrict firearm rights. And they are ARBITRARY. That's right, they can be changed at any time to encompass a larger segment of the population, for example lowering the blood alcohol legal limit from 0.10 to 0.08, and hence disable a larger and larger segment of "the people". Just make a few more laws, disable a few more citizens. At the opening of his article, Mr. Klein complained that, because of confusing court decisions, the right to keep and bear arms, "is still subject to subjective government control." What he has proposed in Section 1 is subjective control at its worst.

However, there is one saving grace in Section 1. It says, "This section does not grant the right, it only recognizes this inherent and intrinsic right to keep and bear arms." I prefer the simple statement that the Second Amendment enumerates a right. You can add a qualifier before right if you wish; perhaps "Inalienable right", or "God given" or "Human" would fit nicely. The concept is that the right exists in man as a consequence of his nature and the necessity for him to assure Life, Liberty and the Pursuit of Happiness. Section 1 concludes by saying that, "The right extends to any physical location under the control of the United States Constitution." That would be nice, but we may have a problem with that. There is much discussion over things like incorporation under the 14thAmendment of the Constitution, and applying those protections to all the States.

Section 2; Here the location of carry is restricted so as to acknowledge the ability to prohibit carry in certain private individual and civic public spaces. Well, that rule just stated in Section 1, "any physical location under the control of the United States Constitution" didn't last too long. What is at issue is this concept; if what you might do is offensive to another, if it might infringe the liberty of another, then you should be considerate of that and then possibly modify your actions. We call that being civil; the golden rule, do for others as they would do for you. Of course that all presupposes that the modification of your activity does NOT put you in heightened danger or impede your ability to defend yourself and the community. Also, an individual or a business or a public space, that restricts your ability to defend yourself, should not expect you to be able to defend them. Even more important, a person or place making the restriction that you may not defend yourself, may then be expressing their liability of seeing to your defense while in their presence or on their property. This is probably an Unintended Consequence that is not anticipated and probably NOT something that needs being specified in the Constitution.

Section 3; What are arms? Now we are beginning to count grains of sand in the desert. First, the section is devoted to firearms, but "arms" does not mean just "firearms". It includes any of the items in the category of devices used for defensive or offensive combat and other uses. Look in the dictionary for a starting point on this definition, it says "arm- 1: WEAPON". The end.

The attempt to define arms in any way creates lots of Unintended Consequences. Look at the Section 3 definition based on "projectile(s)...not greater than .505 inches in diameter". That excludes; a whole lot of muzzle loaders, most shotguns, a bunch of very valuable and collectable specialty rifles and double rifles, and my favorite gun, the .50BMG rifle which has a projectile of 0.510 inches nominal diameter (the bore between lands is 0.500 inches, the grove diameter is .510). These definitions also exclude other items like; Knives, spears, swords, bolas, pepper spray, nun-chuck, arrows, garrote, etc.

Just to make sure the definitions of the permitted arms is complete, Section 3 adds a weight restriction of 15 pounds. Another strike against the .50BMG and a few specialty and collectable firearms. Have you ever tried to fire a shoulder fired arm of large caliber that weighs less than 15 pounds? What makes you so sure my neighbors might feel uncomfortable with me hauling around a Bazooka? At least the recoil is low. I sure would feel more comfortable knowing that I and some neighbors had the ability to field such items in time of need.

Section 4; Licensing. As described here, the fees and prescribed tests, and meeting a mandated "ability", applies a prior restraint on keeping and bearing arms. Poll taxes have long been an illegal remnant of earlier civil rights restraints. It costs you nothing to register and vote. The fees and tests and various requirements for firearm ownership can become arbitrary and excessive if the related motor vehicle process is enlarged to accommodate other needs and costs, none of which may relate to keeping and bearing arms. This section will actually INFRINGE some current rights, for example it may ban open carry in public which is allowed in many areas, and it would ban concealed carry without restriction in areas where this is presently allowed.

The stated purpose to allow such restrictions is to improve the chances of ratification of the proposed amendment. Such compromise loses freedom which will never be regained. Giving the states income from fees in exchange for freedom is not acceptable. How about something along these lines. "Any person may carry any arm for his personal or communal defense so long as that act does not show the intent to perpetrate any deliberate infringement of freedom on any other individual." Sounds like Vermont as I understand the laws up there.

Section 5; A good try at selling this proposal is made here. It is proposed that the 28 th Amendment will superceded and render null and void all previous laws that pertain to keeping and bearing arms. NOW your talking! But wait a minute, what about future laws? Don't we need something like "shall not be infringed" to protect the future? What is to keep the process from starting all over, new law heaped upon useless law. You have just bargained the present and future to gain the appearance of some added freedom.

There is a poison pill hidden in the last paragraph. Mr. Klein says, "I've not included prohibitions against registration as I have problems with that - if some dirt bag kills me, I want the cops to know where he got the gun." Let's be clear here, the "that" which Mr. Kline has a problem with is "prohibitions against registration", or conversely, he has no problem with registration. OK. I know this is a difficult subject, but please, try again, go back and start at the beginning. You want to keep and bear arms so you may defend yourself (and others). If you can defend yourself you may not have to worry about having the "cops" chalk out your body outline, then ask questions, collect evidence and maybe find out who did it. What difference does it make where or how the dirt bag got the gun. I would much rather have a lot of non-dirt bags able to defend themselves and thereby repel the dirt bag factor, reduce their effectiveness and deter future attacks. To be blunt, to remove them from the gene pool, and while we are at the wish list, I'd like the courts to do a little better job too. I'll let the dirt bags seek out Mr. Kline, who is now a soft target, knowing that some day his registration list may have caused him to be disarmed if he drinks three Margaritas instead of two some night and gets himself prohibited from keeping and bearing arms.

In closing, don't try to fix what is not broken. The Constitution and the Bill or Rights express the rights of individual freedom, they are not lists of permitted or prohibited individual activities. Just because some folks don't like the Constitution, we do not need to change it. We should instead try to live by it, not in the way some may think it should be interpreted, but how it was intended, to assure freedom.

Bob Culver
Montgomery Citizens for a Safer Maryland
www.mcsm.org